PCN CC Claim from gladstones and UKPCM

Le_Kirk

Jellybelly23 said:

Coupon-mad said:

You should not use ''I am'' in a defence. No me, myself or I at this stage.
 'The Defendant was' = all of it in the third person.
Also I feel including the abuse of process words at this stage is far too long.  Refer to the fact they can't add £60, but save the detail till WS stage. Like I just told someone else writing theirs...same as we do every day...

Morning coupon-mad, thankyou for your advice. I have nabbed quite a bit from you on here. So if I change my wording as advised above and finish my defence after paragraph 8. Then quickly file the rest of my defence as a WS  so that I have covered all bases would you think this is sufficient? I do not know how you guys ever retain all this information in regards to law it is an absolute minefield of laws and information that seems to go in loops      
Many Thanks 
 

No, you don't file your defence as a Witness Statement (WS); what Coupon-mad is saying is that you reduce your defence length by removing all of the Abuse of Process arguments - except the introductory paragraph, which means that, when it comes time to submit your WS and evidence, you can submit the LONG Abuse of Process arguments.  Your defence still has to make sense so it needs to finish properly with the summary and statement of truth and you must make sure you have all the usual arguments in there that you will have seen from reading other threads.

Jellybelly23

Ok  so re typed defence as follows I think I have amended re all suggestions.

THE COUNTY COURT

 

CLAIM No: XXXXXXXX

 

BETWEEN: 

 

UK CAR PARK MANAGEMENT LTD (Claimant)

 

-and-

 

XXXXXX XXXXXX (Defendant)

 

________________________________________

DEFENCE

________________________________________

 

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

2.    The facts are that the registered keeper of the vehicle in question xxxx xxx, in this case, was not the driver. The registered keeper is not the main driver of this vehicle and does not drive to the place in question.
The 'contract' in question assumes that the registered keeper of the vehicle had seen the poorly displayed signs with no prominent offering of charges when they were not  driving the vehicle. Therefor the registered keeper could not have entered  into such 'contract'.
On review of the signage the very small font indicates that the 'contract' binds the driver (not the registered keeper) to not park outside of a designated area/registered bay. The land is in fact a parcel of non demarked dirt and stone with no clearly defined parking bays between two buildings which formed an entry to a now closed  car park. 

The signage does not give any clear bold headings that it is a permit car park.
The area of signage dedicated to charges is at the bottom of the sign and is not Big and Bold or obvious to a driver as they are placed inside an empty building window and stappled to a door that is often covered by other parked cars. 
the signs merely look like all the caution building site signs which are of a much bolder and warning obvious nature.
The sign states that permits must be clearly displayed at all times but with no offer on how such permits might be obtained.

 

3.    Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

4.    Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. 

 

5.    The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

 

6.    The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

 

7.    The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

 

8.    The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover,

 

This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the civil procedure rules 1998.

The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

 

9.    Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue.

The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

 

10. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a)           only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b)          resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 

Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses

I believe the facts contained in this Defence are true. 

 

Name 

Signature

Date

Coupon-mad

I've added some stuff and removed a couple of typos along the way and have had to spread this across two posts:

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.   Whilst it is admitted that the Defendant was the registered keeper, they were not the driver of the vehicle at the time.  It is denied that the driver of the vehicle entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.   Further, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law.

2.  The Particulars of Claim provide insufficient detail for the Defendant to be able to ascertain the nature of the case as pleaded.  Although the cause of action appears to be breach of contract, the Particulars of Claim:-   

a) fail to identify the parties to the alleged contract;   
b) fail to specify sufficient detail of the location;  
c) fail to state in what manner the alleged contract was breached; 
d) fail to state in what capacity the Claimants are entitled to recover any part of the sum; 
e) fail to state how, as keeper of the vehicle, the Defendant is liable;
f) fail to state the 'parking period' or identify any grace period;
g) fail to specify the 'parking charge' on signage and instead, attempt double recovery.

2.1.  Notwithstanding the above, and the fact that in its pre-action Letter before Claim the Claimant compounded the situation by continuing to omit any photographic evidence - or even a copy of the contract (i.e. the consumer notice), contrary the to pre-action protocol for debt claims - the Defendant sets out this Defence as best they can, in the circumstances.

3.  The registered keeper is not the main driver of this vehicle and does not drive to the place in question.  The Defendant has no knowledge of any parking charge notice and no letters were received, thus a Notice to Keeper ('NTK') as set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') was not properly served.  The Claimant is aware of this because when the recent letter arrived from the Claimant's agent, 'TRACE' the Defendant informed them that no notices had been served.   This was never rectified and it is not established that the car was parked, or stopped more than momentarily.

4.  Given the fact that the registered keeper was not driving, they could not have entered into any purported 'contract' at this site, so cannot be held liable for any alleged breach.  The Defendant has no information, paperwork or photographs and has had to work out the car park location from the Claim's sparse information of simply a road name.  The land is a parcel of non-demarcated dirt and stone with no clearly defined parking bays, between two buildings which formed an entry to a now closed car park.  

5.  It is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them, even if they were seen. They merely state that vehicles must be parked correctly within a bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.  The signs do not prominently and transparently advertise that it is a permit car park.  The few small font, unremarkable notices are placed inside an empty building window and on a door that is commonly obscured by other parked cars.   The signs are lost among a patchwork of all the other ''caution building site'' warning signs which are in a noticeably bolder font. 

6.  The only consideration appears to grant a parking licence to 'permit holders only' with no information regarding how to obtain a permit.  Other drivers are not offered a parking licence, thus the elements of a contract are missing and/or void for impossibility.  The signs absurdly forbid parking without a permit/not in a marked bay, yet attempt to dress up any trespass as if it was a parking agreement after all.  Such consumer notices are never exempt from the test of fairness and these fall foul of the Consumer Rights Act 2015 ('the CRA') Schedule 2, paragraphs 6, 10 & 14 'terms that are likely to be unfair' and the sparse placement of the notices and lack of information about obtaining a permit, fail to meet the core tests of prominence and transparency.

Coupon-mad

7.  Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary authorisation from the landowner to issue parking charge notices under the alleged (unknown to the Defendant) circumstances and to pursue keepers by means of litigation.  It is not accepted that the Claimant has adhered to any landowner instructions, definitions, exemptions, other terms or grace period and it is not accepted that the Claimant has complied with its Trade Body Code of Practice ('CoP') as regards mandatory signs, grace period or any other matter that is later revealed in evidence by way of ambush.  

 

8.    The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK.  The Defendant is having to guess that this did not exceed the Trade Body ceiling of £100, yet the claim includes an additional £60, for which no explanation is given, and which appears to be an attempt at double recovery.  The Claimant may mislead the court by pointing to a clause in their own Trade Body's CoP that appears to 'allow' added sums by way of damages but the Defendant reminds the court that the CoP is written by the parking firms themselves and is a self-serving document, not regulation, and the two competing 'race to the bottom' CoPs propping up this industry have failed consumers so badly that Parliament is currently working on replacing them with a new CoP, following the enactment of the Parking (Code of Practice) Act 2019.

9.   Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private model including recovery letters, which do not represent 'damages'.  The Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages anyway.  By contrast with Beavis, this charge is unconscionable and devoid of any 'legitimate interest' and the Supreme Court stated no less than three times that the operational costs 'must' already be covered by the parking charge, if such a charge is to be held to be a justified/necessary deterrent and disengage the 'penalty rule'.

9.1.  To quote from the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
9.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
9.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''
9.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

10.   In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all.  The Defendant is of the view that this Claimant knew or should have known that an exaggerated claim in excess of £100 for a parking charge which cannot have the same costs added again, is disallowed under the CPRs, the Beavis case, the POFA and the CRA, and that relief from sanctions should be refused.

Statement of Truth:
I believe that the facts stated in this Defence are true.

Name
Signature
Date

Jellybelly23

Coupon-mad thankyou. This is very kind of you to take this time to help. I will sort and keep you posted. 😊

Jellybelly23

Good Morning, just an update and further query. I have until now I guess due to the covid backlog or not maybe it just takes a while for the court system to work through all the greedy money grabbing parking companies claims, had no correspondence since entering my defence. I have now received confirmation from the local county court that they will issue a date upto 90 days from the letter for a hearing and have advised me to take up mediation offered by the county court. I am as advised not entering into mediation. Do I need to let them know I am not mediating? Also today we received an email from gladstones to say their client is willing to reduce the outstanding claim by by £70 give or take a few pennies, I am following previous advice on here that this should also be ignored but again do I just fully ignore the offer or do I email to thank and acknowledge their offer but do not accept it? I am going to scour back through the pages to check if any advice seems to have changed but thought I would update so to speak as I have received some very kind help with this matter on here. I know it's not really an update but just wanted to let those that have helped know I have not just won or lost and happily galavanted off without recognition or thanks 😁. I also have not as yet put together my skeleton argument which I am now taking a deep breath about as oddly I find writing that more intimidating than the actual defence. I have no idea why just how my brain works 🤯🤷‍♀️. So I will add updates when they happen. For now good luck to everyone else in a similar situation 

Coupon-mad

Good to see you back with an update - so you await a court hearing date.

You don't need a skelly, you just need a witness statement, evidence (photos, case law exhibits, etc) and your costs assessment, like in threads by @keypulse and @Chefdave - so go and check them out and copy/adapt what they did.  It's easy once you see theirs!

Le_Kirk

Have you received a DQ, completed it and returned it?  On this form, there is a section where you can say NO to mediation.  Did you tick NO?

Jellybelly23

Morning, perfect thanks coupon-mad I'll get straight on it. 😁. Le-Kirk, yep DQ received and completed quite some time ago but they have sent another letter (infact I've had about 3) the court lost our original defence although we entered it on the mcol page so 🤷‍♀️ but obviously I resent it without any fuss 😇. Will crack on with the witness statement and cross my fingers and toes and all other cross able body parts. Thanks again and I hope to update with good news.

Umkomaas

Check with MCOL website that they have received your DQ seeing they have lost other documents. If there's no DQ (showing as) filed the court can find against you in default. Just a safety first check.